Delhi District Court
Ms Surinder Nath (Huf) vs K.S. Bakshi on 7 June, 2024
IN THE COURT OF SIDDHANT SIHAG, ACJ/ARC/CCJ-
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
CNR No. : DLND03-000117-2010
M/s Surinder Nath (HUF) & Anr. versus Sh. K.S. Bakshi &
Ors.
a) Eviction Petition No. : 5507/2016
b) Name & address of the : 1) M/s Surinder (HUF),
petitioners Through its Karta
Sh. Anuj Nath
2) M/s S.N. Surinder
Nath
Pvt. Ltd.
Through it Director
Sh. Anuj Nath
Both at Nath Haveli, 420
Gitorni, Mehrauli Gurgaon
Road, New Delhi-110030.
c) Name & address of the : 1) Sh. K.S. Bakshi,
respondents s/o Sh. S.S. Bakshi,
: 2) Mrs. Minu Bakshi,
w/o Sh. K.S. Bakshi
3) Mr. Sanjit Bakshi
s/o Sh. K.S.Bakshi
All r/o 4, Katuliya Marg,
Chanakya Prui, New
Delhi- 110021.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 1/81
Also at:
20/48, First Floor, Malcha
Marg, Chanakya Puri,
New Delhi-110021.
Date of institution : 04.02.2010
Judgment pronounced on : 07.06.2024
Eviction Petition under section 14(1)(d) and 14(1) (e) of The
Delhi Rent Control Act, 1958.
JUDGEMENT
1. Vide this judgment, I shall dispose of the instant petition filed by M/s Surinder (HUF) and M/s S.N. Surinder Nath Pvt. Ltd. (hereinafter referred to as the "petitioners") through authorized representative against Sh. K.S. Bakshi, Mrs. Minu Bakshi, and Mr. Sanjit Bakshi (hereinafter referred to as the "respondents") for eviction of the respondents from the tenanted premises under section 14(1)(d) & 14(1)(e) of The Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act').
2. Factual Matrix: It is stated in the petition that suit property no. 20/48, First Floor, Malcha Marg, Chanakya Puri, New Delhi-110021 is residential in terms of the perpetual lease with the L & DO and is being put to use for office purpose by the respondents in violation of the terms of the lease. It is further stated that the respondents have also raised unauthorized construction and have sublet the premises and are charging RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 2/81 exorbitant rent from sub-tenants. It is further stated that the tenancy is one and in the name of three persons (respondents) for a rent of Rs. 1500/- per month and house tax is paid at the rate of Rs. 3,000/- per month. It is further stated that the premises are owned by the petitioner No.1 and the same was let out by Late Surinder Nath, who is the karta of the petitioner No.1 and director of petitioner No. 2. It is further stated that at the time of letting out, the premises were under the tenancy of the petitioner No. 2, who through Sh. Surinder Nath had let out the premises to the respondents vide registered lease deed dated 02.11.1993. It is further stated that during the subsistence of the lease, the petitioner No. 2 surrendered its tenancy in favour of the petitioner no.1, who is the landlord/owner of the premises. It is further stated that vide letter dated 14.12.2002, respondents had demanded the extension of lease for another period of 9 years from petitioner No. 2 and tendered advance rent for the extended period and vide letter dated 27.01.2003, petitioner no. 2 had informed to respondents that it had surrendered the leasehold right to the owners of the premises i.e. the petitioner No. 1 and directed the respondents to attorn the petitioner No. 1 as their landlord and pay the future rents to the petitioner No. 1 directly. It is further stated that while complying this direction, the respondents vide their letter dated 06.02.2002, tendered advance rent to the petitioner No. 1vide pay order No. 839594 for a sum of Rs. 1,62,000/- and the respondents continued to keep the RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 3/81 possession of the premises despite the fact that they are not using the premises as their residence nor the same as their office but have further sublet the premises without the consent or knowledge of the petitioners. It is further stated that premises let for residential purposes are required bonafide by the landlord for occupation as a residence for himself and his family dependent on him and the landlord has no other reasonable suitable residental accommodation. It is further stated that a legal notice dated 07.11.2009 had been sent to all the three signatories to the agreement. It is further stated that karta of the petitioner No.1 urgently requires the premises as residence for himself and his family consisting of wife and 2 sons and the children now need independent rooms for themselves. It is further stated that there is no place where the Karta and his family can reside and hence, the premises under the occupation of the respondents may please be handed over back to the petitioner No.1. Having projected such need, the petitioners have approached this court with the instant petition seeking eviction of the respondents from the tenanted premises.
3. Relief Sought:
i) an order/decree of eviction in respect of the first floor of the property bearing No. 20/48, Malcha Marg, Chanakya Puri, New Delhi-110021 as fully shown in red colour in the site plan attached be passed in favour of the petitioners and against the respondents with costs.RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 4/81
ii) Any other relief, which may be deemed proper may also be granted to the petitioner.
4. Written Statement: The respondents filed written statement wherein they stated that the case of the petitioner is based on falsified facts. The respondents contended that the Petitioner has concealed the material facts from the court and the petition as such is liable to be dismissed on this ground alone. It is further contended that the petitioner No.1 is neither the owner of the premises in question nor is landlord of the respondents and there is no relationship of landlord-tenant between the petitioner No.1 and respondents. It is further contended that the petitioner No.1 is a third party to the lease agreement executed between the landlord M/s S.N. Surinder Nath Pvt. Ltd. and the respondents and therefore cannot maintain any such petition against the respondents. It is further contended that there is no privity of contract between the parties and the property in question is owned by M/s Faquir Chand Raghunath Dass and till date stand in the name of the said firm.
It is further contended that the petitioners, by self- serving statements are trying to create title in favour of the petitioner No.1. It is further contended that there does not exist any document which in any manner creates title of the property in favour of the petitioner No. 1 and the title of the property cannot vest in any person or petitioner No. 1 by merely making statements and is contrary to the laws relating to property and RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 5/81 vesting of title. It is further contended that the petitioner No.1 is a third party to the lease agreement executed between the petitioner No.2 and the respondents. It is further contended that petitioner No.2 at the time of entering into the lease represented itself to be the sole and absolute owner of the property in question. It is further contended that the lease deed dated 02.11.1993 is a duly registered instrument and the Petitioners cannot plead and are estopped from contending anything contrary to the terms of the same.
It is further contended that the property in question has been let out by the petitioner No.2 for the purposes as stated in the lease deed dt. 02.11.93. It is further contended that the respondents are in physical occupation of the said property and are using the same and the petitioners are well aware of the same. It is further contended that in the eviction petition filed by petitioner No.1 under Section 14[1][i] of the Act, the petitioner No.1 appointed an architect to inspect the premises and report of the said architect has been filed by the petitioner No.1 in the said proceedings which clearly shows that the respondents are in occupation of the premises in question and are using the same for the purpose let out to them by the landlord. It is further contended that the respondents are till date in occupation of the said premises and are using the same for their purpose and will produce the relevant records of consumption of electricity and water etc. and the charges being paid to them to the municipal RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 6/81 authorities in support of their contentions. It is further contended that the petitioners have made averments in the petition contrary to the registered lease deed as regards the purpose of lease and the clause 4 of the lease deed dt. 02.11.93 is reproduced hereinbelow:
"4 That the purpose for which the tenancy is being created is for COMMERCIAL/OFFICE usage and that the tenant shall be entitled to use or cause to be used the said tenancy premises for all lawful purposes of any nature whatsoever and the LANDLORD specifically agrees to such COMMERCIAL usage by the TENANT of the said premises now and for the duration of the tenancy."
It is further contended that petitioner No.2 being a company registered under the Companies Act has no right to maintain or invoke the provisions of sections 14(1)(d) and (e) of the Act and from the bare reading of the petition, it is apparent that petitioner No.2 has been merely joined as the petitioner even though it has no cause of action against the respondent. It is further contended that the petitioners have malafidely concealed the fact that Mr. Anuj Nath the alleged Karta of the petitioner No. 1 is residing at 420, Ghitorni, Mehrauli Gurgaon Road, New Delhi as has been admitted by him in various proceedings and the said property is a large property situated on a plot ad-measuring 1 RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 7/81 bigha 1 biswas (approximately 1100 Sq yards) comprising of basement, ground and first floor having a substantially large covered area, which has not been deliberately disclosed by the petitioners. It is further contended that on the basis of the categorical admissions contained in the pleadings, statements and affidavits of petitioners before different Courts that Mr. Anuj Nath is resident of Nath Haveli, 420, Ghitorni, Mehrauli Gurgaon Road., New Delhi, the petitioners are stopped in law and otherwise from taking any such stand contradictory to the same and shows malafide of the petitioners and of Mr. Anuj Nath that he is residing in a tenanted accommodation or the accommodation where he is residing is not suitable or that he has no other suitable accommodation.
It is further contended that the said agreements that have been placed on record by the petitioner in support of their contention that Sh. Anuj Nath has been residing in another tenanted premises are between the alleged landlord and M/s Ivory Palace, a partnership firm. M/s Ivory Palace, the lessee in the said lease agreements, is not a party to the present proceedings. It is further contended that the petition, as such, is not maintainable on this ground alone and that the reliance of the petitioners on the said lease is misconceived and malafide. It is further contended that the respondent No. 1 is the owner of property bearing No.420, Ghitorni, Mehrauli Gurgaon Road, New Delhi and has filed a suit for possession and mesne profits RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 8/81 and damages against defendants, namely Mr. Anuj Nath S/o Late Shri Surinder Nath, Mrs. Veena Gupta, W/o Late Shri Surender Nath and Mr. Saunuj Nath, S/o Late Shri Surinder Nath being CS(OS) No. 1843/2003. It is further contended that the said suit is pending adjudication before the Hon'ble High Court and the said defendants are alleged to be members of Petitioner. It is further contended that the defendants in the said suit including Mr. Anuj Nath have filed the written statement and have contended that respondent No.1 has sold the said property i.e. property bearing No.420, Ghitorni, Mehrauli Gurgaon Road, New Delh to their Late father Mr. Surinder Nath and the consideration was reduction in the rent of the property in question. It is contended that the Hon'ble High court in the above said suit passed the order dated 20/01/2006 on an application of the respondent no. 1(plaintiff therein) for payment of license fee and directed the defendants to maintain status-quo and decline to pass any order for payment and use of occupation charges.
It is further contended that the Hon'ble High Court observed that the property of defendants at Malcha Marg is in occupation of the plaintiff as Tenant and that this would itself be sufficient security for the plaintiff in case the plaintiff ultimately succeeds in the suit and that the Court further accepted the statement of the defendants that the said property would not be transferred, allenated or parted with. It is further contended that the petitioners have made averments in the petition contrary to RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 9/81 the registered lease deed as regards the purpose of lease and the malafides of the petitioners are further apparent from the fact that the premises in question cannot be termed as a reasonably suitable accommodation. It is further contended that the petitioners have not given any details or particulars as to how the premises in question is a reasonable or suitable accommodation and that Mr. Anuj Nath claims to be in possession of a much larger property at Gitorni, Mehraruli, New Delhi and is alleging that he is owner of the same.
It is further contended that the premises in question is barely 1100 sq.ft. in size and in a market place and from the bare comparison of the premises allegedly shown to be in occupation of Mr. Anuj Nath and the premises which is available to Mr. Anuj Nath for occupation and the premises in question would show the malafides of the petitioners. It is further contended that the true facts are as follows:
[a] The property in question l.e. 20/48, Malcha Marg, New Delhi is a leasehold property and the principal lessor is. Land and Development Office. The said property was purchased by one firm M/s Faqir Chand Raghunath Dass and Mr. Surinder Nath was one of the partners of sald firm. It is represented that on the demise of the father of said Mr. Surinder Nath, property in question fell to the share of Mr. Surinder Nath. The property however till date stands in the name of the firm M/s Faqir Chand Raghunath Dass in the records of L& D.O. RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 10/81 [b] Mr. Surinder Nath incorporated a company in the name and style of M/s. S.N. Surinder Nath Pvt. Ltd. and raised construction on the property where the tenanted premises is situated. All permissions, completion certificates etc. were however obtained in the name of the firm M/s Faqir Chand Raghunath Dass only. Mr. Surinder Nath during his life time never proclaimed any HUF or title of the said property in the said HUF. The said Mr. Surinder Nath only proclaimed that property where the tenanted premises is situated fell in his share in personal name.
[c] The property in question was let out to the respondents initially in February 1993 by M/s S.N. Surinder Nath Pvt. Ltd. The said lease deed was for a period of five years renewable at the option of the lessee on a monthly rent of Rs.1,500/-. The respondent gave a security deposit of Rupees five lakhs to the landlord. That Mr. Surinder Nath however could not handover the property in question and sought some more time to handover the same.
[d] It is pertinent to point out that respondents are the owners of adjoining premises bearing no.21/48. The only reason why respondents agreed to accede to the request of Mr. Surinder Nath to take the premises on lease was due to the proximity and accessibility of the tenanted premises. The landlord and Mr. RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 11/81 Surinder Nath were well aware of the requirements of the respondents with regard to the premises and handed over the premises in question as it exists today to the respondents for their use and occupation for the purposes specified.
[e] That Mr. Surinder Nath and landlord M/s S.N. Surinder Nath Pvt. Ltd. could only handover the possession of the premises on 18.03.1993. The parties entered into another lease deed wherein the lease period was enhanced to 9 years further renewable for subsequent periods of 9 years at the option of the lessee on the same terms and conditions. As per the demand of the landlord, the respondents paid advance rent for 9 years amounting to Rs.1,62,000/- to the petitioner and also gave another security deposit of Rs.3 lakhs in addition to the earlier amount of RS.5 lakhs paid to the landlord under the lease deed of February 1993 and the said amounts are till date with the landlord. It is pertinent to point out that Mr. Surinder Nath because of family disputes was facing financial crunch and since the respondent No.1 and Mr. Surinder Nath were good friends no account were settled because of mutual faith and trust and were kept in abeyance for a future date as the respondents were in possession of the property in question.
[f] That the respondents submit that since the time of handing over of the premises by the landlord, the owner Mr. Surinder Nath and his son Mr. Anuj Nath has visited the premises RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 12/81 innumerable times. It is only after more than 10 years, for the first time the petitioner, who is not even landlord or owner, has with the malafide motive raised frivolous objections. The respondents however further submits that they have all the right to carry out any additions and alterations even structural as per the terms of the lease and the landlord has no right to object to the same. The landlord of the premises has also executed a contemporaneous General Power of Attorney in favour of respondent no.1 for carrying out all obligations for and on behalf of the landlord. The landlord and the owner as such were and are well aware of the premises as it exists today and its user by the respondents. The respondents have kept the premises in a perfect condition at its own expense and the landlord is well aware of the same.
[g] That on expiry of initial period of nine years, the respondents exercised their right of renewal for further period of 9 years on the same terms and conditions. The respondent paid 9 years advance rent to the landlord but landlord requested to pay the amount to petitioner no. 1 herein on the ground that they surrendered their leasehold rights to the owner i.e. the petitioner No. 1 herein. The respondents in order to avoid any default in making payment of rent though paid. the amounts to the petitioner No. 1 as per the directions of the landlord M/s S.N. Surinder Nath Pvt. Ltd. but did not attorn the petitioner No.1 as RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 13/81 landlord and called upon the landlord Petitioner No.2 to furnish the documents of title. The petitioner No. 1 and the landlord failed to furnish any details to the respondents and no such document has been filed. The respondents submit that the story sought to be enacted in the petition of landlord Petitioner No.2 being tenant of petitioner No.1 or landlord having surrendered the tenancy to the petitioner No.1 etc. is false and frivolous and without any basis and is an attempt to circumvent and abuse the process of the law. Since the original owner and landlord has created certain rights in favour of the respondents, which exists till date, the petitioner No.1 or any legal heir of late Mr. Surinder Nath or any other person cannot alter the same. No notice was ever issued by said Late Mr. Surinder Nath or the landlord for any such alleged addition oг alteration or for any purpose whatsoever to the respondents.
It is pertinent to point out that landlord M/s S.N. Surinder Nath Pvt. Ltd. and owner Mr. Surinder Nath had agreed and undertaken not to create any future charge, lien, mortgage, pledge or any other form of encumbrances on the said premises during the period the respondents are in possession of the tenanted premises. It is further the term and condition of the lease that lessee shall quietly and peacefully hold, possess and enjoy the demised premises during the period of lease and subsequent renewals without any interference and disturbances by the landlord or any person claiming under the company. The landlord RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 14/81 as such had no right to transfer the said property to any person or create any encumbrance on the property and such transfer, if any, is null and void. Since the petitioner No.1 is neither the owner nor the landlord, the question of any alleged surrender, if any, by the landlord Petitioner No.2 does not arise. The present petition as such is malafide and has been filed with oblique motives and to circumvent the process of law as the owner and landlord could not have filed any petition against the respondents under the lease and even otherwise by their conduct were precluded from filing any eviction petition.
The respondents submit that the present petition is a ruse to compel the respondent no.1 not to evict Mr. Anuj Nath and other legal heirs of Mr. Surinder Nath from the property bearing no.420, Gitorni Village, Mehrauli Gurgaon Road, New Delhi, of which the respondent no.1 is the owner. The respondent no.1 had on the request and representations of Mr. Surinder Nath had permitted him to reside in the said property in June 1994. The respondent no. 1 has number of times called upon Mr. Anuj Nath, the son of Late Mr. Surinder Nath and who is proclaiming himself to be karta of petitioner No.1 and other legal heirs of Mr. Surinder Nath to vacate the said property. The said Mr. Anuj Nath and other legal heirs of Mr. Surinder Nath are in illegal occupation of the said property of the respondent no.1. The RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 15/81 present petition is a counter blast to the aforesaid request of the respondent no.1.
It is further contended that the respondents submit that the present petition is malafide and is an attempt to circumvent the process of law and to overreach the terms of the lease, by the legal heirs of Late Mr. Surinder Nath, the original owner of the property and that the said lease agreements filed and relied by Petitioners cannot be looked into for any purpose whatsoever and are hit by Section 17 read with Section 49 of the Registration Act, 1908 and Section 107 of Transfer of Property Act, 1882 and are even otherwise between third parties to the petition.
It is denied by the respondents that petitioner No.1 is the landlord of the premises or the respondents are tenants of the petitioner No.1 and there is no relationship of landlord and tenant between the petitioner No.1 and respondent. It is further contended that there is no privity of contract between the parties and the petitioner No.1 has not filed or furnished any proof of it being the owner or landlord of the premises in question. It is further contended that the landlord of the premises M/s S.N. Surinder Nath Pvt. Ltd. has undertaken in the lease deed not to encumber the said property in any manner till the time the respondents are in possession of the tenanted premises and the owner of the said premises Late Mr. Surinder Nath had also RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 16/81 accepted the terms of the lease deed as being applicable to him also.
It is further contended that the premises has been let out to the respondents by the landlord M/s. S.N. Surinder Nath Pvt. Ltd. for the purposes stated in the lease. It is further contended that the landlord or the owner never disclosed to the respondents the conditions imposed upon them by any authority in respect of leased premises and in any event the respondents have not used or dealt with the leased premises except in accordance with their agreement with landlord and rules and regulations of NDMC.
It is further contended that the premises are being used by the respondents as per the terms of lease deed for residential purposes only and denied that the premises is being used for any commercial purpose or that the respondents have raised any unauthorized construction or have sub let the premises or are charging any rent as has been alleged.
It is further contended that no sanitary or electrical fittings were provided by landlord and the respondents have installed all the sanitary and electrical fittings at their own expense in the premises, and are maintaining the same at their expense and also paying for all amenities i.e. electricity, water etc., directly to the authorities.
It is denied by the respondents that entire first floor has been let out to the respondents by the landlord and the site RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 17/81 plan as filed by the petitioner is incorrect. It is contended that the plan filed by the petitioner otherwise also is incorrect and is not as per site. It is further contended that the respondents submits that they were handed over the possession of the premises in the condition as it exists today and the respondents have not carried out any construction or additions or alterations in the premises.
It is further contended that the premises is being occupied by the respondents and their servants and is used for resting area/residence which is adjacent to the office of the respondent No.1 and said portion is continuously in occupation and use of the respondent and have never been left vacant at any point of time and the Plaintiff is not entitled to seek eviction on the ground of Section 14(1)(d) of the DRC Act.
It is specifically denied by the respondents that neither the respondents nor their family members are residing in the tenanted premises for last more than 6 months before the date of filing of the above petition. It is contended that the premises is in continuous possession of the respondents since the date of inception of the tenancy and is being used for the residential purposes and as resting area as the premises is adjacent to the office of the respondent No.1.
It is denied that the respondents have retained the premises only for depriving the petitioners from their legitimate right to reside in their own house or that the Respondents are liable to vacate the premises. It is further denied that any of the RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 18/81 petitioners are forced to pay any exorbitant rent for taking on any suitable accommodation for residence or that the Karta of Petitioner No.1 require the premises for his residential purpose or that there is no place where the Karta and his family can reside and hence the premises under the occupation of the respondents is liable to be handed over to any of the Petitioners. It is further contended that the said property is a large property situated on a plot ad-measuring 1 bigha 1 biswas (approximately 1100 Sq yards) comprising of basement, ground and first floor having a substantially large covered area, which has not been deliberately disclosed by the petitioners. With these contentions, the respondents have sought dismissal of the eviction petition.
5. Replication was filed by the petitioner wherein he denied all the averments put forth in the written statement.
6. Evidence adduced by the petitioner: Petitioner, has examined Sh. Anuj Nath as PW1. He has tendered his evidence by way affidavit Ex.PW1/1 bearing his signatures at point X & Y. He has relied upon documents i.e Incorporation certificate is Ex.PW1/A (objected to not being original), board resolution authorizing him to file the present case as Ex.PW1/B, the site plan of the premises 20/48 1st floor Malcha Marg showing the position of premises when let out as Ex.PW1/C, the site plan of the premises showing the alteration made by RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 19/81 respondents Ex.PW1/C1, the unauthorized construction raised by the respondents on the second floor as shown in site plan Ex.PW1/C2, the certified copy of arbitration award dated 26.10.1978 as Ex.PW1/D, the certified copy of order of Hon'ble High Court of Delhi dated 21.08.2006 as Ex.PW1/E, the certified copy of order passed by the division bench of Hon'ble High Court of Delhi as Ex.PW1/F, the certified copy of the proceedings of the arbitration held by the arbitrator as Ex.PW1/G, the certified copy of report of process server in case execution no. 86/2009 as Ex.PW1/H, the documents downloaded from the website of Registrar of Companies (ROC) confirming that the respondents are not residing in the tenanted premises and are residing in premises no.4, Kautilya Marg, Chanakya Puri, as collectively Ex.PW1/I (Colly) running into 27 pages, the MTNL bills for telephone installed in his personal name at premises no. 53 Sainik Farms, New Delhi are collectively Ex.PW1/J (Colly) running into 11 pages, the NDMC letters, correspondence, property bills cheques receipts etc are collectively Ex.PW1/K (Colly) running into 15 pages, the certified copy of his statement recorded in another case execution no. 31/08 as Ex.PW1/L, the certified copy of statement of respondent no. 1 in case execution no. 31/08 as Ex.PW1/M, the income tax return of petitioner no.1 as Ex.PW1/N, the office copy of legal notice sent to the respondents as Ex.PW1/O, the original postal receipts are collectively Ex.PW1/P (Colly), the original AD card (5) received RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 20/81 and the office of his advocate confirming the service of notice Ex.PW1/Q (Colly) and the certified copy of lease deed dated 2 nd November, 1993 as Ex.PW1/R. When subjected to cross-examination, the said witness testified that M/s Surender Nath (HUF), petitioner No.1 is the landlord of the premises. He has deposed that there was no lease-deed executed between petitioner No.1 & respondents and lease-deed was executed between the petitioner No.2 and respondents. He has further deposed that petitioner No.2 surrendered their lease hold rights back to petitioner No.1 and he has not placed any lease-deed executed between petitioner No.1 & 2. He has further deposed that there is no such lease-deed as the owners of M/s. Surender Nath (HUF) and M/s. S.N. Surender Nath Pvt. Ltd. are the same. He has admitted that petitioner No.1 & petitioner No.2 are assessed under the Income-Tax Act Separately and have their independent PAN numbers. He has further deposed that petitioner No.2 is a company registered under the Companies Act, 1956 and he will have to check his records as to what was the term of the lease between petitioner No.1 & petitioner No.2. He has admitted that the lease-deed between petitioner No.2 and respondents was duly registered at the time of execution and petitioner No.2 appointed respondent No.1 as Power of Attorney Holder, however, he does not know about the powers granted under the said Power of Attorney.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 21/81He has admitted that the property in question where the tenanted premises is situated, is a lease-hold property under the Land & Development Office. He has admitted that as of now, the recorded lessee of the property is M/s. Faqir Chand Raghunath Das. He has deposed that they had applied for the execution of lease-deed in favor of M/s. Surender Nath (HUF) and the lease-deed is not being executed because respondents are not allowing the NDMC to inspect the property. He has deposed that Faqir Chand Raghunath Das was a partnership concern, where his father and his brothers were partners under their HUF capacity. He has further deposed that there was an award in 1978 under which property came to his father's HUF share and the award became Rule of Court somewhere in 2012 after which the property came into his father's HUF. He has further deposed that the legal heirs of other partners have given their No Objection for the same in this regard.
He has deposed that he does not know whether M/s Faqir Chand Raghunath Das is still in existence or not and state that the said firm has gone to the share of other brothers of his father. He has deposed that the award stated by him above was challenged by his father. He has further deposed that the challenge to the said Award was disposed off vide judgment dated 21.08.2006 as already Ex. PW1/E. He has further deposed that they he, Mrs. Veena Nath (his mother) and his brother Mr. Sanuj Nath, being the legal heirs of late Sh. Surender Nath had RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 22/81 challenged the judgment dated 21.08.2006 and the said challenge was disposed off vide judgment dated 10.04.2012 Ex. PW1/F. He has deposed that no execution has been filed for implementation of the said Award Ex. PW1/D. He has denied that petitioner No.1 was not a party either to the Arbitration proceedings or to the challenge or in the appeal and stated that vide Ex. PW1/G i.e. the proceedings of the Award that his father and his brothers were partners in the said businesses in their HUF capacity.
He has admitted that lease-deed Ex. PW1/R was not amended or modified by the parties and that his father Late Mr. Surender Nath was aware of the status of property at the time of execution of lease-deed Ex. PW1/R. After checking the judicial file, he has stated that petitioner No.2 informed the respondents and other tenants in the property about surrender of his lease-hold rights back to petitioner No.1 sometime in 2002.
He has deposed that the legal heirs of late Mr. Surender Nath are the owners of property bearing No. 420, Ghitorni, M.G. Road, New Delhi and the property known as Nath Haveli. He has deposed that he does not have any title-deed of the said property and they have also not filed any proceedings in any Court of Law for the title of the said property. He has further deposed that the respondent No.1 Mr. K.S. Bakshi was the title RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 23/81 holder of the property when respondent No.1 filed the case against them.
He has deposed that Mr. K.S. Bakshi, respondent No.1 was the title holder till the year 2004 what happened thereafter, he does not know and stated that they are in possession of the property since 1993.
He has admitted that Mr. K.S. Bakshi, respondent No.1 has filed a suit for possession of the said property against him, Mrs. Veena Nath & Mr. Sanuj Nath and the said suit is pending till date.
He has deposed that they were staying in the property bearing no. 20/48, First Floor, Malcha Marg, Chankya Puri till March 1993 and the family comprised of his father- mother, himself, his wife and brother. He has deposed that he or his father never owned or possessed any property in Zakir Nagar, Delhi. He has admitted that petitioner no. 1 had filed a writ petition bearing WP(C)1297/13 in the High Court of Delhi against NDMC and respondents and as per orders of the Hon'ble High Court the inspection of the suit premises was carried out by NDMC. He has deposed that neither he nor anyone on his behalf was present at the time of said inspection. He has admitted that NDMC had issued a notice for demolition of unauthorized construction as alleged in the notice and that respondents filed an Appeal against the notice of demolition of the part of the suit property issued by NDMC. He has deposed that the petitioners RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 24/81 had not filed any Appeal against the notice of NDMC and he does not remember whether the petitioners had opposed the Appeal filed by the respondents. On seeing a copy of letter dated 06.02.2003, he identified the same (Ex.PW1/R1). He has deposed that no documents were given or shown by petitioner no. 2 to the respondents and the documents were not shown as petitioner no. 1 had provided the copy of the Award and the High Court order regarding this property. He has deposed that he will have to check his records to answer as to whether the petitioner no. 1 showed or provided the copy of the Award and the orders of the High court to the respondent.
On seeing a copy of letter dated 27.01.2003, he identified the same and stated that the same had been issued by petitioner no. 2. It is wrong to suggest that respondents never acknowledged the petitioner no. 1 as the landlord. He has admitted that the respondents paid the rent for nine years to petitioner no. 1 on the directions of petitioner no. 2. He has denied that the said amount was paid by respondents to petitioner no. 1 to avoid any default in payment of rent and that the petitioner no. 1 had no right either to demand or to accept any rent from respondents.
He has deposed that the property had 420 Ghitorni Village, Mehrauli Gurgaon Road, New Delhi consists of basement, ground floor and one servant room on barsati and the property is of approximately 1000 Sq. Yards. He has deposed that RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 25/81 he does not have any sanction plan of the said property and deposed that the property has three bedroom attached bathroom, one drawing room and kitchen. He has admitted that in the suit for possession filed by respondent no. 1, himself, his brother Sh. Sanuj Nath and his mother Smt. Veena Nath have filed written statement. He has denied that there are bedrooms on the first floor of this property and there is no first floor and there is only one servant room above the ground floor.
He has deposed that 'Ivory Palace' is a registered partnership firm wherein his brother and he are equal partners. He has deposed that the said partnership has a running business and admitted that the said firm is Income Tax assessee in its own name and filing regular income tax returns.
He has deposed that presently, he is staying at W5/25(old no. F216), Sainik Farms, New Delhi and the said premises has four bedrooms, drawing cum dining room and kitchen.
He has admitted that petitioner no. 1 had filed two eviction petitions against the respondents one for subletting and another for additions and alterations and admitted that both the said petitions have been dismissed by the then Ld. Judge. He has also admitted that petitioner no. 1 has filed appeals against the above judgments which are pending and he does not have idea as to on which address the respondent was served in the said appeal.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 26/81He has deposed that the petitioner no. 1 has applied to the NDMC for mutation of suit property in its own name. He was shown two letters dated 30.05.2012 and 29.10.2013 and on seeing the same, he confirms that both the said letters have been issued by him.
He has deposed that the electricity and water charges for the tenanted premises are being paid by the respondents. He has denied that the respondents are using the tenanted premises for residential purposes only. He has deposed that according to him the respondents are using the premises for office purposes of respondent no. 1.
On seeing the written statement Mark PW1/5 filed by him and his mother and brother in the suit filed by respondent no. 1 for possession of property bearing no. 420, Ghitorni, MG Road, New Delhi, he confirms the same has been signed and verified by him and his mother and brother. He has denied that petitioners are not paying any rent for the premises under his occupation.
He was shown and confirms his signature on the reply to the application u/s 25(B) of the DRC Act and also on the counter affidavit - attached thereto at point A, B and C. He has denied that the petitioner no. 1 has no requirement of the tenanted premises or that petitioner no. 1 is neither the owner nor has any right in the tenanted premises. He has denied that petitioner no. 1 has no right to obtain mutation in its name or that RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 27/81 the petitioners have sufficient accommodation for themselves. He has further denied that the respondents are using the premises for the purpose, it was taken on rent or that the respondents have not misused or sublet the tenanted premises. He has further deposed that the premises in question is not sufficient for the petitioners. He has denied that the respondents have deposited the rent upto 2020 or that he has deposed falsely.
Petitioners have examined Sh. Sanuj Nath as PW2. He has tendered his evidence by way of affidavit Ex.PW2/1 bearing his signatures at point A & B. In his cross examination, he has deposed that they are the owners of the suit property and the property is recorded in the name of Surinder Nath (HUF), the petitioner herein. He has deposed that his brother is looking after this case and he is not aware what record he has filed. He has deposed that his father had given the suit property on rent to the respondent and he is one of the Director of M/s. S.N. Surinder Nath Pvt. Ltd.
He has deposed that his father was looking after the affairs of the suit property and he is not aware whether the property in question was let out by M/s. S.N. Surinder Nath Pvt. Ltd. to the respondent. He has deposed that M/s. S.N. Surinder Nath Pvt. Ltd. was a family company and he has not seen the lease deed executed between the said company and the respondent.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 28/81He has deposed that he does not know whether the said company M/s. S.N. Surinder Nath Pvt. Ltd. executed any GPA in favour of respondent no.1. He has deposed that he is not aware whether the suit property is leasehold or freehold. He has further deposed that Fakir Chand Raghunath Dass was his family firm in which one partner was his grandfather in his individual capacity and three of his sons in their HUF capacity were the partners. I cannot produce the partnership deed. He has deposed that he is not aware that M/s. Fakir Chand Raghunath Dass is the recorded lessee of the said property in the records of L&DO.
He has denied that Sh. Surinder Nath was partner of the M/s. Fakir Chand Raghunath Dass in his individual capacity and the HUF was not partner of M/s. Fakir Chand Raghunath Dass. He has admitted that there was an arbitration proceeding between his father and his brothers. He has deposed that he is aware of the Award passed in the said arbitration proceedings but he is not aware whether the Award was challenged or not. He has deposed that he does know whether M/s. Fakir Chand Raghunath Dass still exists or not.
He has admitted that he is residing at 420, Ghitorni, MG Road, New Delhi. He has deposed that presently he, his brother namely Anuj Nath and their mother namely Smt. Veena Nath are the owners of the said property. He has deposed that he is residing in the said property since year 1993. He has further deposed that he has not seen the title documents of the said RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 29/81 property and his father had purchased the said property from respondent no.1. He has further deposed that Title Deed could not be executed in favour of his father. He has deposed that he is not aware whether any step was taken for execution of Sale Deed in their favour and stated that his elder brother is looking after the same and only he can tell. He has deposed that he is not aware whether the respondent no.1 has filed suit for possession for recovery of the aforesaid property and his brother is looking after the same. He has deposed he cannot affirm or deny whether he was defendant no.3 in the said suit or that he had filed his WS duly signed by him. He has deposed that he had signed on all documents at the instance of his brother without going through the contents.
On confrontation with document Ex.PW1/R5 which is the certified copy of WS in CS(OS) No.1843/03 before the Hon'ble High Court of Delhi, he has admitted his signatures at point A and B in the said document.
He has deposed that he had appeared as a witness in one matter at Saket, however, he cannot affirm or deny whether the said case is the same case as referred above. He has deposed that he does not know the rent of the suit property being paid to the landlord. On confrontation with his petition wherein the rate of rent is stated to be Rs.1,500/- with his WS Ex.PW1/R5 where from point A to A1 it is mentioned that rate of rent was Rs.20,000/- and later reduced to Rs.1500/-, he has stated that RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 30/81 market rent was Rs.20,000/- however, respondents were paying Rs.1500/- as rent.
He has deposed that the lesser rent was charged from respondents for the reason that his father had purchased the property at Ghitorni from the respondents and adjustment was being made towards consideration amount of the property at Ghitorni. He has admitted that the actual rent agreed between them was Rs.20,000/- and Rs.18,500/- was the adjustment amount. He has deposed that the amount of Rs.18,500/- being adjusted, was not part of rent.
He has deposed that he does not remember whether he has filed any document in any other proceedings or taken the stand of reduction of rent from Rs.20,000/- to Rs.1500/- as stated by him on the previous date in his cross-examination. He has deposed that he had not participated in the negotiations/talk wherein the aforesaid adjustment was made and he has not seen any document, letter, correspondence, noting etc. executed/ prepared/recorded by his father wherein the factum of the aforesaid adjustment of rent has been recorded. He has denied that he has concocted a false story regarding adjustment of rent from Rs.20,000/- to Rs.1500/-.
He has deposed that he is the director in company M/s S. N. Surender Nath Pvt. Ltd. since the formation of the company, however, he does not remember the date. He has further deposed that besides him there are two other directors in RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 31/81 the company at present i.e. his brother Sh. Anuj Nath and mother Smt. Veena Nath. He has further deposed that initially the registered office of the concerned company was 20/48, Malcha Marg, New Delhi i.e. the suit property herein and at present the address of the company is 420, Ghitorni Village, Mehrauli, Gurgaon Road, New Delhi-110030. He has deposed that he does not remember when was the last AGM of the company held or that whether the last AGM of the company was held 5/10/15 years back. He further deposed that it might have taken place last year but he has no notice of the same.
He has further deposed that he had filed some other eviction petitions as well against the respondent, however, he does not know the exact number of such eviction petitions. He has deposed that he does not remember the rate of rent of the suit premises which was mentioned in those eviction petitions or that the grounds on which the other eviction petitions were filed, however, he remember one of the eviction petition was filed on the grounds of misuser of the property since the property is a residential one but it was being used for commercial purposes. He has further deposed that those other eviction petitions are still pending and he cannot affirm or deny whether those eviction petitions have been dismissed. He has further deposed that he is not aware whether appeal has been filed against the dismissal of those eviction petitions.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 32/81He has deposed that before shifting to Ghitorni property, they used to reside at suit property itself and he had lastly visited the suit property about two months back. He has deposed that he had gone to the first floor of the suit property but the same was locked. He has deposed that he had lastly entered the suit property immediately before the same was let out to the respondent.
He has deposed that his family does not own any property at Maharani Bagh, Delhi and he used to reside in a rented property at Maharani Bagh, somewhere in the year 1981-
82. He has denied that he is recording his deposition about facts as told to him by his brother Sh. Anuj Nath at his instance or that his family owns others properties as well in Delhi NCR region besides the suit property herein.
He has deposed that at the time the suit property was let out, it consisted of two bed rooms attached bathroom and kitchen and he is not aware of the present status since he has not been permitted to enter the suit premises by the respondent. He has denied that he was having sufficient accommodation besides the suit property for his needs and he has no requirement of the suit property herein or that he is deposing falsely.
Petitioner has examined Mr. Aman Nath as PW3. He has tendered his evidence by way of affidavit Ex.PW3/A bearing his signatures at point A & B. RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 33/81 In his cross examination, he has deposed that he is not aware of the year when petitioner no.1 Surinder Nath (HUF) was formed. He has further deposed that his father, chacha and grand-mothers are the members of petitioner no.1. He has further deposed that he is not aware when petitioner no.2 was incorporated. He has further deposed that his father and his uncle are the Directors of petitioner no.2 and he does not know when they became the directors of petitioner no.2, however, as on date they are the directors of petitioner no.2. He has deposed that he does not seen the records of the petitioner no.2 company, however, his family told him about the information of petitioner no.2 and its directors.
He has further deposed that they are living in House No. W5/25, Sainik Farms, New Delhi since the year 2013 and living in this house alongwith his father, mother, brothers and his wife. He has further deposed that there are four rooms in the house and he is not aware about the area of this building. He has further deposed that he is working for a health-care company at Gurugram, Haryana as a Vice President.
He has deposed that he and his family members do not own any property in Gurugram and except this Malcha Marg Property, his family owns one property in Ghitorni. He has further deposed that last time, he lived in Malcha Marg, First Floor, it had three rooms, again said, it had two rooms and they were residing in this house till 1993. He has further deposed that RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 34/81 he is not aware about the area of this Malcha Marg property and that he had not visited the said property after the year 1993. He has further deposed that he has not met Mr. K S Bakshi or his family members in this property. He has deposed that his father had told him that the respondent have not been using the tenanted premises as their residence for years together.
He has further deposed that his grand-father was the owner of the ghitorni property and he has not seen any title documents in favour of his grand-father qua this property. He has further deposed that he is not aware as to what document was executed in favour of his grand-father qua this property. He has further deposed that he was not aware of the date of its purchase but they shifted there in the year 1993. He has further deposed that he is aware of the litigation filed by Mr. K S Bakshi against his family members. According to information received from his father, he states that the case filed by Mr. K S Bakshi is a false case and he is not aware about the parties to the said false case. He has further deposed that they are paying a sum of around Rs.2.5 lacs per month as rent for this Sainik Farm property where they are residing.
He has denied that he has no knowledge about the user of the property at Malcha Marg by Mr. K S Bakshi or that the property at Malcha Marg is not sufficient for his family. He has further denied that this property is not needed by them or that he is deposing falsely.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 35/81Petitioner has examined Sh. Om Prakash as PW4.
He has brought the summoned record i.e. certified copy of conveyance deed dated 23.12.2020 with respect to property no. 20/48, Diplomatic Enclave, Malcha Marg, New Delhi - 110021 executed between the Chairman, NDMC and M/s Surender Nath (HUF) through its Karta Sh. Anuj Nath. He has proved the certified copy of the conveyance deed (running into 12 pages) as Ex.PW4/A. In his cross examination he has deposed that he had received the summons on 06.11.2021 and he had not checked any other record qua this case. He has further deposed that he had seen the record of the case on the basis of which the present conveyance deed has been executed. He has further deposed that the conveyance deed has been executed on the documents / application dated 18.09.2020 comprising application, perpetual lease deed dated 28.07.2020 and agreement to lease dated 28.07.2020.
7. Thereafter, Plaintiff Evidence was closed.
8. Evidence educed by respondents:
Sh. Sanjit Bakshi has been examined as RW1. He has tendered his evidence by way of affidavit Ex.RW1/A bearing his signatures at point A & B. He has relied upon the following documents:RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 36/81
i) Certified copy of lease deed executed between petitioner no. 2 and respondent mentioned as Ex.RW1/1 (already exhibited as Ex. PW1/R) in his evidence affidavit.
ii) Copy of suit filed by respondent no. 1 being CS (OS) No. 1843 of 2003 - Mark R1 (Ex.RW1/2 is de-exhibited);
iii) Copy of affidavit filed by Mr. Anuj Nath in the suit No. 779 of 2006 along with examination-in-
chief and cross-examination of Mr. Anuj Nath dated 06.08.2008 and 13.03.2009 - Mark R2 (colly) (pages 25 to 38) (Ex.RW1/3 is de-
exhibited);
iv) Copy of evidence of Mr. Anuj Nath in another proceedings along with chief examination and cross-examination-Mark R3 (colly) (page 40 to
49) (Ex.RW1/4 is de-exhibited);
v) Copy of application filed by respondents in eviction petition no. 46/2003- Mark R4 (Ex.RW1/6 is de-exhibited) and the copy of reply to the said application filed by petitioners is marked as Mark R5;
vi) Copy of judgement passed in CS (OS) No. 1843/2003- Mark R6 (Ex.RW1/7 is de-exhibited);
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 37/81vii) Copy of letter dated 06.02.2003 which is already exhibited as Ex. PW1/R1.
viii) Copy of letter dated 25.03.2003 - Mark R7 (Ex. RW-1/9 is de-exhibited).
ix) Certified copy of GPA dated 02.11.1993 - Ex. RW1/11.
x) Print out of Gazette notification dated
31.05.2007 - Mark R8 (Ex. RW1/12 is de-
exhibited).
In cross examination, he has admitted that rent for a period of 9 years was paid by his father Sh. K.S. Bakshi to the petitioner no. 1 and the same was paid on the instructions of petitioner no. 2 as petitioner no. 2 stated that it was the owner and rent may be paid to petitioner no. 1.
He has deposed that he is not aware if the petitioner no. 2 had categorically stated that the rent may be paid to petitioner no. 1 as petitioner no. 1 is the owner and admitted that the suit property falls within the jurisdiction of the NDMC. He has admitted that he, his mother or father owned a property in Malcha Marg and the address of the property owned is 21/48, Malcha Marg.
He has further deposed that he has two properties in Delhi and he cannot tell about the properties of his father and mother in Delhi. He has further deposed that he is not aware if Late Sh. Surender Nath and his family were residing in the suit RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 38/81 property prior to the same being given on tenancy to him and his parents.
He has deposed that they moved in the suit premises somewhere in 1993-94 and the area of the property is 700-800 sq. ft. approximately. He has admitted that his permanent residence address is 4, Kautilya Marg, Chankyapuri, New Delhi, since 1997-98 and his parents also live in the same house at Kautilya Marg. He has deposed that his Aadhar card, PAN card, Voter ID, and passport are of the address of Kautilya Marg.
He has further deposed that suit premises are being used by his father as his library or resting area from time to time. He has further deposed that he is aware that his father and Late Sh. Surinder Nath were very good friends and he never participated in any of the meetings between them.
After going to para 11 of his evidence affidavit, he denied that property no. 420, Ghitorni, M.G. Road, was sold by his father to Late Sh. Surender Nath on 18.03.1993. He again after going through para 14 of his evidence affidavit, stated that Anuj Nath who is the karta of petitioner no. 1 is currently occupying a property measuring approximately 1100 sq. yards (6000 sq. ft approximately) and the suit property is approximately 700-800 sq. ft only, so it is not reasonable to assume that the petitioners need it for their residence. He has deposed that he did not recall the terms of lease deed.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 39/81He has further deposed that the area of Kautilya Marg property where he is residing is approximately 1200 sq. yards and he cannot affirm or deny whether the conveyance deed of suit property is in the favour of petitioner no. 1. He further deposed that they were told at the time of execution of lease deed that the property is owned by petitioner no. 2. He has further deposed that his father must have been told about it by Anuj Nath and his father. He has denied that he is fully aware that the suit premises are owned by petitioner no. 1 or that he is deliberately and falsely challenging the ownership of petitioner no. 1 to delay the present case. He has further denied that there is privity of contract between petitioner no. 1 and the respondent. He has denied that he, his father and mother are tenants of petitioner no.
1. He has deposed that the lease deed dt. 02.11.1993 was for the period of 9 years and he cannot recall when it was renewable. He has deposed that the term of the lease was for 9 years and further renewable at his option. He has deposed that he does not remember whether the lease deed renewed only with the mutual consent of both parties.
He has further deposed that he is not aware whether Mr. Anuj Nath and his family are residing in rented accommodation since 2007 and as per his understanding they are staying in 1100 sq. yard. He has further deposed that property in Ghitorni belongs to his father and he is not sure if there is any litigation between his father and Mr. Anuj Nath in respect of said RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 40/81 1100 sq. yard, property in Ghitorni. He has further deposed that property no. 21/48, Malcha Marg is owned by his family.
He has deposed that he was aware of the fact that the name of petitioner no.2 from the record of ROC had been struck off when his affidavit was filed. He has denied that he, his father and mother attorned petitioner no.1 as their landlord by paying them rent qua the suit premises and he is not aware about last paid rent and when it was paid and for what period. He has denied that after the expiry of period of 9 years from 02.11.1993, he and his parents were supposed to handover back the possession of suit premises to the petitioner no.1 or that his father was under obligation to register the sale deed qua the property at Ghitorni in favour of Surinder Nath (now deceased). He has further deposed that Sh. Surinder Nath was allowed to use property at Ghitorni as he was in a financial crunch and was friends with his father. He has denied that Late Surinder Nath was not facing any financial crunch. He has further denied that he and his parents are illegally retaining the suit premises while they were fully aware that Mr. Anuj Nath and his family does not have any premises in Delhi or NCR to reside or that he is deposing falsely in order to frustrate the efforts of petitioner to evict them from the suit premises or that he is deposing falsely.
Sh. Arvinder Singh has been examined as RW2. He has tendered his evidence by way of affidavit Ex.RW2/A bearing his signatures at point A & B. RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 41/81 In his cross examination, he has denied that all the respondents are not residing in the suit premises or that he is deposing falsely with regard to the residence of respondents. He has admitted that the respondents are not residing in the suit premises. He has deposed that he is working for respondent No. 1 Sh. K.S. Bakshi and have appeared today as witness on the instruction of Sh. K.S. Bakshi. He has admitted that the properties bearing No. 17/48, 18/48 and 21/48, Malcha Marg are owned by the family of Sh. K.S. Bakshi. He has deposed that he is not managing any of these properties and all these properties are on rent. He has denied that he is deposing falsey at the behest of Sh. K.S. Bakshi being under his employment and dependent for his remuneration on him. He has deposed that he is associated with him for last many years. He has denied that the subject property is not being used by either respondents or that Sh. K.S. Bakshi is not using the same even for his library, rest room or private meetings. He has further denied that his personal staff is not available at the subject premises or that the premises is lying vacant.
9. Thereafter, Respondent Evidence was closed and final arguments on behalf of both the parties have been heard.
10. FINDINGS 10.1 I shall first deal with the ground of eviction RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 42/81 taken by the petitioners under Section 14(1)(d) of the Delhi Rent Control Act, 1958. Section 14 (1) (d) of DRC Act provides that a decree for recovery of possession can be passed if it is proved that "that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof."
10.2 Ld. Counsel for the petitioners has submitted that the premises are lying vacant and the respondents reside in property bearing no. 4, Kautilya Marg, Chanakyapuri, New Delhi. In this regard, reliance is placed upon Ex. PW1/I (colly) which are the documents downloaded from the website of ROC wherein the address of the respondents has been mentioned as 4, Kautilya Marg, Chanakyapuri, New Delhi. Ex. PW1/M is the statement of respondent no. 1 in another proceeding wherein he has mentioned the aforementioned as his address. Ex. Pw1/H is the statement of a process server qua warrants of attachment issued to him in another proceeding wherein it has been reported that the premises in question i.e property bearing no. 20/48, First Floor, Malcha Marg, Chanakyapuri, New Delhi were found unaccessible as the stair entry to the premises was found blocked by ply board.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 43/8110.3 Per Contra, Ld. Counsel for the respondents has submitted that it is admitted by respondents that they are residing in property bearing no. 4, Kautilya Marg, Chanakyapuri, New Delhi however the premises in question i.e. property bearing no. 20/48, First Floor, Malcha Marg, Chanakyapuri, New Delhi are being used for the use of respondent no. 1 as his library/resting area. RW1 had stated the same in his cross- examination and the same remained unchallenged during his entire cross-examination. Similarly RW2 stated that respondent no. 1 visits the premises in question 3-4 days in a week and barring bald suggestions, his testimony also has gone unchallenged qua his aforesaid averment.
10.4 Perusal of record reflects that petitioners have relied upon Ex. PW1/I (colly), Ex. PW1/M and Ex. PW1/H to prove that the respondents are residing at property bearing no. 4, Kautilya Marg, Chanakyapuri, New Delhi. The same has been admitted to by the respondents however it has been put forth on behalf of respondents that premises in question i.e. property bearing no. 20/48, First Floor, Malcha Marg, Chanakyapuri, New Delhi are being used for the use of respondent no. 1 as his library/resting area. RW1 had stated the same in his cross- examination and it has remained unchallenged during his entire cross-examination. Similarly, RW2 stated that respondent no. 1 visits the premises in question 3-4 days in a week and barring RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 44/81 bald suggestions to the contrary, his testimony also has remained unchallenged qua the aforesaid aspect. There is nothing else on record to prove the contention of the petitioners that respondents are not using the premises in question and the same are lying vacant. During the course of final arguments, Ld. Counsel for the petitioners has failed to put forth any relevant precedent to support his argument that even if the premises are being used as library/resting area by respondent no. 1 still the same shall qualify as non-user as defined under Section 14(1)(d) of the DRC Act. In such a scenario, the inevitable conclusion is that it cannot be held that the premises are not being used by the respondents. Accordingly, it held that petitioners have failed to prove their case the ground of eviction taken by them under Section 14(1)(d) of the DRC Act.
10.5 I shall now address the second ground taken by the petitioners for eviction of respondents. The second ground taken is that of Section 14 (1) (e) of DRC Act. Section 14 (1) (e) of DRC Act provides that a decree for recovery of possession can be passed if it is proved "that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 45/81 accommodation".
10.6 It has been held by the Hon'ble High Court of Delhi in Tarun Kumar vs Parmanand Garg RC.REV. 56/2018 that:
"In order to succeed in a petition under section 14(1)(e) of the Delhi Rent Control Act, the landlord is required to establish three conditions:-
i. There must be a relationship between the parties as landlord and tenant ii. The tenanted premises must be bonafidely required by the landlord either for himself or for his family members iii. There is no other alternate suitable accommodation available with the landlord."
10.7 Ld. Counsel for the petitioners has submitted that at the time of institution of petition, the property in question was a lease-hold property under the Land & Development Office and the recorded lessee of the property was M/s. Faqir Chand Raghunath Das. M/s Faqir Chand Raghunath Das was a partnership concern, wherein father of Karta of petitioner no. 1 and his brothers were partners in their HUF capacity. He has further submitted that there was an award in 1978 under which property came to his father's HUF share and the award became Rule of Court somewhere in 2012. During the course of proceedings, conveyance deed of the property in question was also executed by NDMC in favour of petitioner No. 1. It is RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 46/81 further submitted that petitioner No. 2 is a company owned by the family of Karta of petitioner No. 1.
10.8 It is further submitted that lease-deed of the property in question was executed between the petitioner No.2 and respondents in 1993. During the subsistence of tenancy, petitioner No.2 surrendered it's lease hold rights back to petitioner No.1. It is further submitted that vide letter dated 14.12.2002, the respondents demanded extension of the lease for another period of 9 years and in reply to the same petitioner No. 2 vide its letter dated 27.01.2003 informed the respondents that the petitioner No. 2 had surrendered the leasehold rights of the property in question in favour of petitioner No. 1. By way of the said letter, petitioner No. 2 also directed the respondents to attorn petitioner No. 1 as the landlord and directed the respondents to pay all future rents directly to petitioner No. 1. It is submitted that in compliance of the same, the respondents paid advance monthly rent to the petitioner No. 1 for a period of 9 years. Accordingly it is submitted that petitioner No. 1 is the landlord of the respondents and the owner of the property in question.
10.9 It is further submitted that even though petitioner No. 1 is the owner of the property in question however it is entitled to the reliefs sought, in the capacity of being landlord of the respondents. It is also submitted that even though RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 47/81 in previous petitions filed by petitioner No. 1 against the respondents, it has been held that the petitioner No. 1 is not the landlord of respondents; however the said finding is not binding on the instant court and not hit by the principle of Res Judicata as none of those findings have attained finality since the appeal preferred against them is still pending. Ld. Counsel for the petitioners has submitted that even though it is true that petitioner no. 2 was struck off from the records of ROC before the instant petition was filed however the said fact was not within the knowledge of the directors of petitioner no. 2. He has further submitted that the said fact does not make petitioner no. 2 a non- entity in the eyes of law and the company i.e. Petitioner no. 2 can still file a petition for certain purposes. In this regard, Ld. Counsel for petitioners has drawn the attention of this Court to Section 250 of Companies Act. He has further placed reliance on M/s Dwarka Portfolio Pvt. Ltd. Vs Assistant Commissioner of Income Tax, ITA No. 2563/Del/2017 wherein it has been held that:
"Though the Assessee company has been struck off under Section 248 of the Companies Act 2013, in view of sub-sections (6) and (7) of Section 248 and Section 250 of companies Act 2013, the Certificate of Incorporation issued to the Assessee company cannot be treated as cancelled for the purpose of realizing the amount due to the company and for payment or discharge of the liability or obligations of the company, we are of the opinion that the Appeal filed by the struck off RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 48/81 Assessee Company or Appeal filed by the Revenue against the struck off Company are maintainable. Therefore by rejecting the contention of the Ld. DR, we hold that the present Appeal filed by the Assessee (struck-off company) is maintainable and the same has to be decided on merit."
10.10 Accordingly, it is submitted by Ld. Counsel for the petitioners that a company whose name has been struck off from the records of ROC is not non-est in the eyes of law. Such a company is still legally alive and can file a suit for realizing the amount due to the company and for payment or discharge of the liability or obligations of the company. It is submitted that it falls within one of the obligations of the Company to aid petitioner no. 1 in the instant petition as petitioner no. 2 has claimed to be a tenant of petitioner no. 1. It is also submitted that vide instant petition, the petitioner no. 2 has not sought any relief for itself which may contravene any of the provisions of Companies Act and has merely joined the petition to assist and aid the petitioner no. 1 as admittedly it was the landlord of respondents.
10.11 Per contra, Ld. Counsel for the respondents submits that respondents are the tenants of the property in question by virtue of registered lease deed dated 01.11.1993 executed between the petitioner No. 2 and the respondents, wherein petitioner No. 2 had represented itself to be the owner of RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 49/81 the said property. He further submits that after the expiry of initial lease period of 9 years when the petitioner No. 2 directed the respondents to pay all future rents directly to petitioner No. 1, the same was paid to the petitioner No. 1 only to avoid default in payment of rent. He further submitted that at the time of tendering of advance rent, respondents had sought documentary proof that title of the property vests with petitioner No. 1. It is further submitted that respondents never attorned petitioner No. 1 as landlord. He has further submitted that petitioner No. 1 was not the owner of the property in question at the time of institution of petition. It is also submitted that in previous petitions filed by petitioner No. 1 against the respondents, it has already been held that the petitioner No. 1 is not the landlord of respondents. Accordingly, the same issue cannot be agitated again by the petitioner No. 1 as it is barred by the principle of Res Judicata. Ld. Counsel for the respondents has further submitted that the petitioner no. 2 had been struck off from the records of ROC in 2007 and the instant petition was filed only in 2010. It is further submitted that once the name of the petitioner was struck off from the records of ROC, the company could not have issued the board resolution dt 21.10.2009 which was filed with the petition. Accordingly, it is submitted that the company i.e. Petitioner no. 2 and the board resolution issued by it was a non-est in the eyes of law.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 50/8110.12 The first aspect to be dealt with is whether the instant petition is maintainable as the petitioner no. 2 had been struck off from the records of ROC in 2007. It has been held by the Hon'ble Supreme Court in Commissioner Of Income Tax Jaipur vs M/S Gopal Shri Scrips Pvt Ltd, AIRONLINE 2019 SC 472 that:
"10. Mere perusal of the impugned order quoted supra would go to show that the High Court dismissed the appeal on the ground that it has rendered infructuous because it was brought to its notice that the name of the company - the respondent-assessee has been struck off from the Register of the Company under Section 560(5) of the Companies Act, 1956.
11. In other words, the High Court was of the view that since the respondent-Company stands dissolved as a result of the order passed by the Registrar of the Companies under Section 560 (5) of the Companies Act, the appeal filed against such Company which stands dissolved does not survive for its consideration on merits.
12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous.
13. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution".
14. The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 51/81 struck off under Section 506 (5) of the Companies Act.
15. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with.
16. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside."
10.13 In light of the aforesaid, it is observed that a company does not become a non-entity, on it's name being struck off from the records of ROC and it survives but for a limited purpose as mentioned hereinabove. The next question that arises is whether the aforesaid limited purpose enables the petitioner no. 2 to join the instant petition. Admittedly, petitioner no. 2 is not seeking any relief vide instant petition. The relief that is being claimed is by petitioner no. 1. It is also not in dispute that it was petitioner no. 2 that had leased out the premises in question vide lease deed Ex. PW1/R in 1993 to the respondents. In such a scenario, in my opinion, it is only appropriate that such a company i.e. Petitioner no. 2 has joined the instant proceedings for it's effective adjudication. If a contrary view is taken, it would put an unnecessary handicap on the Court qua the adjudication of the instant dispute. In my opinion, the same could not have been the intention of the legislature. For the aforesaid reasons, the arguments put forth but Ld. Counsel for the respondents that RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 52/81 petitioner no. 2 is non-est in the eyes of law, needs to be rejected.
10.14 It is also contended by Ld. Counsel for the respondents that petitioner no. 2 is guilty of Suppressio Veri and Suggestio Falsi in not disclosing in their petition the aforesaid factum of it's name being already struck off from ROC. It is submitted, that the same merits dismissal of the instant petition.
10.15 Perusal of record reflects that on 09.04.2024, Sh. Anuj Nath, one of the Directors of petitioner no. 2 gave the statement that the name of petitioner no. 2 was already struck off from the records of ROC at the time of filing of instant petition however he was not aware of the said fact and he only got to know about it once respondents filed an application in this regard. Section 560(5) of the Companies Act, 1956 provides that after striking off the name of the company from the records of ROC, the Registrar shall publish notice thereof in the official Gazette. Further, it is settled law that publication of a notification in the official Gazette has a presumption of knowledge to the general public. However, the said Gazette notification was never tendered in evidence by the respondents. To prove that the director of petitioner no. 2 had the knowledge of the aforesaid fact, it was incumbent upon the respondents to bring on record the aforesaid notification for the Court to draw necessary presumption of knowledge, however for reasons best known to RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 53/81 them, the same was not done. In such a scenario, the Court cannot dismiss the averment of the director of petitioner no. 2 that he had no knowledge of the company having been struck off from the records of ROC. For this reason, it cannot be held that petitioner no. 2 is guilty of Suppressio Veri and Suggestio Falsi.
10.16 I shall now decide the question as to whether the principle of res judicata shall apply in the instant matter qua the finding given in previous proceedings that there is no relationship of tenant landlord between the petitioner No. 1 and the respondents. Section 11 of the CPC provides that "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
10.17 It is settled law that even where Section 11 does not apply, the principle of res judicata still applies for the purpose of achieving finality in litigation. In this regard I place reliance on Satyadhyan Ghosal and Ors. Vs Smt. Deorjin Debi and Anr. AIR 1960 SC 941.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 54/8110.18 Ld. Counsel for the respondents has placed reliance on Md. Nooman & Ors vs Md. Jabed Alam & Ors (2010) 9 SCC 560, wherein the Hon'ble Supreme Court concurred with the opinion expressed by the Court in Pardip Singh vs. Ram Sundar Singh, AIR (36) 1949 Patna 510 wherein it was held that:
"The decision in a rent suit is not res judicata on the question of title unless the question of title had to be decided, was expressly raised, and was expressly decided between the parties and in each case it is necessary to examine carefully the decision in the rent suit before any opinion can be formed as to whether it operates as res judicata on the question of title or not. Ordinarily the decision would be res judicata only with regard to the existence of the relationship of landlord and tenant. The difference in the two classes of cases is very well illustrated in two Privy Council decisions, namely, Run Bahadoor Singh v. Mt. Lucho Koer, 12 I.A. 23: (11 Cal. 301 P.C.), where it was held that the decision was not res judicata as the question of title had been gone into only incidentally and collaterally, and Radhamadhub Holdar v. Manohar Mookerji, 15 I.A. 97: (15 Cal. 756 P.C.), where the question of title was directly decided in a rent suit, and the decision was held to be res judicata."RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 55/81
10.19 In my opinion, reliance placed by Ld. Counsel for the respondents on the aforesaid judgment is misplaced as even though the decision of a Court qua the existence of the relationship of landlord and tenant between the parties shall operate as res judicata however that is only so, if the issue decided therein has attained finality. In the instant matter, it is admitted by the respondents that both the previous petitions wherein it was held that petitioner No. 1 is not the landlord of respondents have been challenged before appellate Court and the said appeals are still pending. In such a scenario, it is held that since the aforesaid findings have not attained finality, the principle of res judicata is not applicable in the instant matter. In this regard, I seek support from the judgement of State Of Andhra Pradesh vs B. Ranga Reddy (D) By L.R, AIRONLINE 2019 SC 1150 wherein it has been held that:
"Section 11 and Explanation I of the Code would be applicable in subsequent proceedings between the same parties or between the parties under whom they or any of them claimed under the same title. But the findings in the first and second suit will not operate as res judicata as such findings are subject matter of challenge in the appeals filed by the plaintiffs in their respective suits. All the three suits have been decided together and the three appeals pending against such judgment and decrees. Therefore, it cannot be said that the first and the second suit are the former suits as the decree passed therein has not attained finality. The findings recorded therein will not, therefore, operate as res judicata..."RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 56/81
10.20 Therefore, the argument put forth by Ld. counsel for the respondents that the finding given in previous petitions qua the relationship between petitioner no. 1 and the respondents shall operate as res judicata in the instant matter, is liable to be rejected.
10.21 The next aspect to be dealt with is the contention of the petitioners that petitioner No. 1 is the owner as well as landlord of the property in question. As per the certified copy of arbitration award dated 26.10.1978 as Ex.PW1/D the property in question fell to the share of Sh. Surinder Nath who was the Karta of petitioner no. 1 at that time. The said Award became rule of the Court vide order dated 21.08.2006. The certified copy of the said order of Hon'ble High Court of Delhi dated 21.08.2006 is Ex.PW1/E. The aforesaid order qua Rule of Court attained finality in 2012. The certified copy of the said order passed by the division bench of Hon'ble High Court of Delhi in this regard is Ex.PW1/F. Ex. PW1/K (colly) are the house tax receipts reflecting that petitioner no. 1 has been paying the house tax of the property in question.
10.22 Ld. Counsel for the respondents has submitted that as per the aforesaid Award Ex. PW1/D, it was Sh. Surinder Nath who became the owner of the property in question, in his RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 57/81 personal/individual capacity. It is argued that the HUF of Sh. Surinder Nath i.e. petitioner no. 1 had no relation with the aforesaid Award. The said submission is strongly refuted by Ld. counsel for the petitioners on the ground that the aforesaid award Ex. PW1/D was based on the statement Ex. PW1/G given by Sh. Rajendra Nath (one of the brothers of Sh. Surinder Nath) wherein it was categorically stated that he along with his 2 brothers including Sh. Surinder Nath were partners in M/s Faqir Chand Raghunath Das in the status of HUF and their father was partner in the said firm in his individual capacity. Accordingly it is submitted that it was Sh. Surinder Nath HUF i.e. petitioner no. 1 which became the owner of the property in question through the said Award. It is submitted that it is for this reason that the conveyance deed dated 23.12.20 Ex. PW4/A was executed by NDMC in favour of petitioner No. 1.
10.23 Without going into the merits of the aforesaid contentions, it is observed that the controversy qua the ownership of property in question has been put to rest by conveyance deed dated 23.12.20 Ex. PW4/A which was executed by NDMC in favour of petitioner No. 1. Therefore, the contention raised on behalf of respondents that petitioner No. 1 is not the owner of the property in question is liable to be rejected. Even otherwise, it is observed that with regard to Section 14(1)(e) of Delhi Rent Control Act, to show ownership, it is not essential for the RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 58/81 petitioner no. 1 to show absolute ownership. He is only to prove that he has better title than tenant and that he was collecting rent for itself and not on behalf of anyone else. It is admitted position that no other entity or individual has staked claim over the ownership of the premises nor has anyone else claimed rent from the respondents. In such a scenario, the test of ownership in the context of Section 14(1)(e) of Delhi Rent Control Act stands satisfied. In this regard, I seek support from the judgment passed by Hon'ble High Court of Delhi in A.K. Nayar vs Mahesh Prasad, 2008 IX AD (DELHI) 296 wherein while discussing the law relating to Section 14(1)(e) Delhi Rent Control Act, it has been held that:
"It is therefore evident that the landlord herein was not supposed to prove absolute ownership. He was only to prove that he was something more than tenant and he was collecting rents not for his brother but for himself. It was not for the tenant to challenge the family settlement arrived at between landlord and his elder brother. Only Sh. J.P. Srivastava, the elder brother of landlord could have challenged the family settlement and plea of ownership taken by the landlord. It is not the case of the tenant/petitioner that at any point of time, Sh. J.P. Srivastava staked his claim over the property and asked the tenant to pay rent to him directly or not to vacate the property..."
10.24 Thus, it is held that for the purpose of the instant petition filed under Section 14(1)(e) of Delhi Rent RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 59/81 Control Act, the petitioners have duly proved that petitioner no.1 is the owner of the property in question.
10.25 Ld. Counsel for the respondents have also contended that petitioners have led evidence which is beyond their pleadings and the same cannot be considered by the Court. It is submitted that the petitioners have led evidence in order to prove that M/s Faqir Chand Raghunath Das was a partnership concern, wherein father of Karta of petitioner no. 1 and his brothers were partners in their HUF capacity. Further, evidence has been led to prove that there was an award in 1978 under which property came to Sh. Surinder Nath's HUF share and the award became Rule of Court somewhere in 2012. Evidence was also led to prove that petitioner no. 1 has conveyance deed in his favour. It is submitted by Ld. Counsel for the respondents that the aforesaid evidence has been led beyond pleadings and the same cannot be considered. Reliance in this regard is placed on the case of T.H. Musthaffa vs M.P. Varghese & Ors, (1999) 8 SCC 692 wherein it has been held that:
"Unless the appellant had put forth his case in the pleading and the respondents are put on notice, the respondents cannot make an admission at all and there is no such admission in the course of the pleadings. If the pleadings did not contain the necessary foundation for raising an appropriate issue, the same cannot go to trial. Any amount of evidence in that regard, however excellent the same may be, will be futile."RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 60/81
10.25 Per Contra, Ld. Counsel for the petitioners has submitted that the petition already mentions that petitioner no. 1 is the owner of the premises in question and what has been led in evidence is only to elaborate the same. It is further submitted that no evidence has been led beyond the pleadings in the instant matter.
10.26 Bare perusal of the instant petition would reflect that petitioners have stated therein that petitioner no. 1 is the owner of the premises. It is settled law that no evidence can be led beyond pleadings however what has been led in evidence is only in elaboration and in support of the stand taken by the petitioners in their petition. It is amply clear that the portion of evidence that is contended to be beyond pleadings by the respondents is only to support their claim that petitioner no. 1 is the owner of the premises in question. Therefore, the aforesaid argument of Ld. Counsel for the respondents needs to be rejected.
10.27 The next question to be decided is whether the petitioner no. 1 is the landlord of the respondents. At this stage, it is essential to reproduce the law laid down in Bismillah Be (Dead) By Lrs vs Majeed Shah, 2017 (2) SCC 274 wherein Hon'ble Supreme Court has held that:
"25) Law relating to derivative title of the RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 61/81 landlord (Lessor) and challenge, if made, to such title by the tenant (Lessee) during subsistence of tenancy in relation to demised property is fairly well settled. Though by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/lessee is entitled to challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property in an action brought by the Assignee/Vendee against the tenant for his eviction from the demised property under the Rent laws. This right of a tenant is, however, subject to one caveat that the tenant/lessee has not attorned to the Assignee/Vendee. In other words, if the tenant/lessee pays rent to the Assignee/Vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an Assignee/Vendee in the proceedings.
26) However, once the Assignee/Vendee proves his title to the demised property, the original tenancy devolves on the Assignee/Vendee and tenant/lessee by operation of law on the same terms and conditions on which it was entered into with the original landlord/lessor and continues till either modified by the parties or is determined by the landlord in accordance with law. It enables the Assignee/Vendee to acquire the status of a "new landlord" in place of the original landlord of the demised premises qua tenant/lessee."
10.28 It is admitted position that lease-deed of the property in question was executed between the petitioner No.2 and respondents in 1993. It is further admitted that vide letter RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 62/81 dated 14.12.2002, the respondents demanded extension of the lease for another period of 9 years and in reply to the same petitioner No. 2 vide its letter dated 27.01.2003 informed the respondents that the petitioner No. 2 had surrendered the leasehold rights of the property in question in favour of petitioner No. 1. By way of the said letter, petitioner No. 2 also directed the respondents to attorn petitioner No. 1 as the landlord and directed the respondents to pay all future rents directly to petitioner No. 1.
10.29 It is also admitted that in compliance of the same, the respondents paid advance monthly rent to the petitioner No. 1 for a period of 9 years however it is the contention of Ld. Counsel for the respondents that the rent was paid to petitioner no. 1 to avoid any default in the payment of rent and vide letter dt. 06.02.2003 Ex. PW1/R1, the respondents had sought the title proof of petitioner no. 1 qua the suit property which was never provided to the respondents. Accordingly, it is submitted that the aforesaid payment of rent does not amount to attornment on the part of the respondents. In this regard, Ld. Counsel for the respondents has placed reliance on judgment passed by the Hon'ble High Court of Delhi in Mohd. Ilyas And Anr. vs Mohd. Adil And Ors., 53(1994)DLT655 wherein it has been held that:
"Thus "to attorn" merely means to acknowledge the relation of a tenant to a new landlord. Therefore, "attornment" by the tenant would mean acceptance of the new owner as landlord and RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 63/81 estopping the tenant to dispute the landlord's title thereafter. Of course, attornment had to be in good faith and not on account of any deception caused on the tenant. Payment or non-payment to new landlord does not affect the relationship created by attornment."
10.30 At this stage, it is essential to determine whether the rent paid by the respondents to petitioner no. 1 amounts to attornment. PW1, in his cross-examination, has admitted that he has not placed on record any lease deed executed between petitioner no. 2 and petitioner no. 1. There is no documentary proof to support the averments of the petitioner that petitioner no. 1 had leased the property in question to petitioner no. 2. However, as has been held above, it has been duly proven by the petitioners that petitioner no. 1 is the owner of the property in question. It is admitted position that vide letter dt. 27.01.2003, petitioner no. 2 had informed the respondents that petitioner no. 1 is the owner of the premises in question and that it has surrendered it's tenancy rights to the petitioner no. 1.
10.31 Even though, the petitioners have failed to file any documentary proof to support their averment that petitioner no. 2 was the tenant of petitioner no. 1, however in my opinion there is no deception in the intimation given by petitioner no. 2 in the aforesaid letter. The factum of informing the tenant as to who is the owner of the property and that the future rents are to be RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 64/81 paid to him, can, by no means, be treated as deception. Accordingly, the reliance placed by the Ld. Counsel for the respondents on the aforesaid precedent is misplaced.
10.32 Further, as far as the contention of the respondents is concerned that rent was paid to petitioner no. 1 to avoid any default, it is essential to discuss Section 27 of the Delhi Rent Control Act which provides as follows:
"27. Deposit of rent by the tenant. -
(1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner:
[Provided that in case where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.] xxxx"
10.33 While interpreting the aforesaid provision, the Hon'ble Supreme Court has held in Sarla Goel & Ors vs Kishan Chand, 2009 (7) SCC 658 that:
"Now we come to the most important provision regarding the procedure under the Act to pay or deposit or tender rent to the landlord, if he refuses to grant any receipt in respect of the payment already made to him. As quoted herein earlier, RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 65/81 Section 27 deals with deposit of rent by the tenant. It clearly says that where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner. When the words "bona fide doubt" has been added to Section 27, the tenant may remit such rent to the Controller by postal money order. From a conjoint reading of this provision referred to herein above and particularly Section 27 of the Act, in our view, it cannot be doubted that the procedure having been made by the Legislature how the rent can be deposited if it was refused to have been received or to grant receipt for the same. If that be the position, if such protection has been given to the tenant, the said procedure has to be strictly followed in the matter of taking steps in the event of refusal of the landlord to receive the rent or to grant receipt to the tenant. It is well settled that whether the word "may" shall be used as "shall", would depend upon the intention of the Legislature. It is not to be taken that once the word "may" is used by the Legislature in Section 27 of the Act, would not mean that the intention of the Legislature was only to show that the provisions under Section 27 of the Act was directory but not mandatory.
In other words, taking into consideration the object of the Act and the intention of the Legislature and in view of the discussions made herein earlier, we are of the view that the word "may" occurring in Section 27 of the Act must be construed as a mandatory provision and not a RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 66/81 directory provision as the word "may" , in our view, was used by the Legislature to mean that the procedure given in those provisions must be strictly followed as the special protection has been given to the tenant from eviction. Such a cannon of construction is certainly warranted because otherwise intention of the Legislature would be defeated and the class of landlords, for whom also, the beneficial provisions have been made for recovery of possession from the tenants on certain grounds, will stand deprived of them."
10.34 It is matter of record that in 2002, the petitioner no. 2 had refused to accept the rent from the respondents and asked them to pay the rent to petitioner no. 1 as it was the owner of the property in question. In such a scenario, when the petitioner no. 2 had refused to accept the rent and if respondents were in doubt as to whom the rent is payable, then they should have taken recourse to the procedure established under Section 27 of the Delhi Rent Control Act. As has been quoted above, the Hon'ble Supreme Court has held that the aforesaid procedure has to be strictly followed and the word "may" featuring in the proviso has to be read as "shall". Therefore, the only inevitable conclusion that follows is that when the petitioner no. 2 refused to accept rent and if the respondents were having any bona fide doubt as to whom the rent if payable, they should have taken the recourse of procedure enumerated in Section 27.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 67/8110.35 In my opinion, the act of the respondents in not availing the aforesaid provision and paying the future rent to petitioner no. 1 duly amounts to attornment. Thus, it is held that the respondents have duly attorned the petitioner no. 1 as their landlord.
10.36 Next contention that has been put forth by Ld. Counsel for the respondents is that Ex. PW1/R is the lease deed entered into between petitioner no. 2 and the respondents wherein petitioner no. 2 had claimed itself to be the owner of the property in question. It is submitted that once the aforesaid lease deed has come on record, the petitioners are estopped from claiming anything contrary to it's contents as the same is hit by Section 91 and Section 92 of Indian Evidence Act. In this regard, Ld. Counsel for the respondents has placed reliance upon Roop Kumar vs Mohan Thedani, 2003 AIR SCW 2425 wherein it is held that:
"It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 68/81 great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence p. 648) In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberation omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing. Sections 91 and 92 apply only when the document on the face of it contains or appears to contain all the terms of the contract. Section 91 is concerned solely with the mode of proof of a document which limitation improved by Section 92 relates only to the parties to the document. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91."
10.37 It has been held in the aforesaid judgment that the import of Section 91 and 92 of the said Act is to exclude oral RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 69/81 evidence for the purpose of contradicting, varying, adding or subtracting from a written document. However, it is not by means of oral evidence that the petitioner no. 1 has laid claim to the ownership of property in question. As has been discussed above, petitioner no. 1 has duly proved by means of documentary evidence that it is the owner of the property. Further, petitioner no. 1 was not a party to the aforesaid lease deed. In such a scenario, Section 91 and 92 of the Indian Evidence Act are of no consequence. Therefore, the contention of the Ld. Counsel for the respondents that petitioners are estopped from claiming that petitioner no. 1 is the owner of the property on account of aforesaid provisions, is liable to be rejected. For the same reason, if petitioner no. 2 has claimed itself to be the owner of the premises in question in lease deed Ex. PW1/R then the respondents are at liberty to take appropriate legal action against them, if found appropriate and sustainable. However, the same cannot be used by the respondents to contend that on account of representation of petitioner no. 2 that it is the owner of the premises, even petitioner no. 1 is estopped to prove his ownership to the property in question.
10.38 Another contention that has been raised by Ld. Counsel for the respondents is that PW2, in his cross- examination has stated that rate of rent of the premises was Rs. 20,000/- and was later reduced to Rs. 1,500/- through rent deed RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 70/81 Ex. PW1/R in consideration of the sale of property bearing no. 420, Gittorni, MG Road, Delhi by the respondent no. 1 to Sh. Surinder Nath, the then Karta of petitioner no. 1. Accordingly, it is submitted that the rate of rent of the premises should be taken as Rs. 20,000/- thereby taking the premises outside the purview of DRC Act. However, it is also stated by Ld. Counsel for the respondents that the said argument should in no way be construed as admission on the part of the respondents qua the aforesaid averment of PW2.
10.39 It is the case of both the parties that the tenancy is governed by lease deed Ex. PW1/R. The rate of rent in the said lease deed is recorded as Rs. 1500/- per month. PW2 also, in his cross-examination, has stated that the amount of Rs. 18,500/- that was being adjusted was not part of rent of the premises. In my opinion, it is immaterial as to what was the rate of rent that the premises were fetching earlier. What is relevant for the purposes of the instant petition is the rate of rent of the premises at the time of institution of petition. Ex. PW1/R proves the same to be Rs. 1500/- per month. The same is not disputed by any of the parties and till date the rate of rent remains the same. Once that is conclusively established, it is immaterial whether rent was 20,000/- per month previously. Accordingly, the contention raised by Ld. Counsel for respondents is liable to be rejected.
RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 71/8110.40 I shall now discuss whether the tenanted premises are required bona fide by the landlord either for himself or for his family members. Ld. Counsel for the petitioners has submitted that petitioner no. 1 is an HUF with PW1 and his family, PW2 and his family, and their mother as it's members. The property bearing no. 420, Gittorni, MG Road, Delhi is in occupation of PW2 and his family alongwith mother of PW1 and PW2. It is further submitted that PW1 who is the karta of petitioner no. 1, alongwith his family that comprises of his wife and two adult sons, was earlier residing on rent at property bearing no. 53, first floor, Sainik Farms, New Delhi and is currently residing on rent at W5/25, Sainik Farms, New Delhi. To support his submissions, Ld. Counsel had relied upon Ex. PW1/J (colly) which are the MTNL bills of property bearing no. 53, first floor, Sainik Farms, New Delhi in the name of Sh. Anuj Nath, Karta of petitioner no. 1.
10.41 Ld. Counsel for the petitioners has further submitted that tenant cannot dictate terms to the landlord as to how else can the latter adjust himself without getting the possession of the tenanted premises. The petitioner no. 1 is the owner of the premises and the premises are required bona fide for the residence of Karta of petitioner no. 1 and his family. Ld. Counsel for the petitioners has also placed reliance upon M/S. Metro Bearings vs Mrs. Faizunnisa & Ors., RC. REV. 513/2018 RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 72/81 passed by Hon'ble High Court of Delhi.
10.42 Per Contra, Ld. Counsel for the respondents has submitted that the petitioner no. 1 is in occupation of property bearing no. 420, Gittorni, MG Road, Delhi of which the petitioner no. 1 claims to be the owner. It is further submitted that the said property is large enough to house all the members of petitioner no. 1 as PW1, in his cross-examination, has himself admitted that the said property is approximately 1000 sq. Yards.
10.43 Bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. Ld. Counsel for the petitioners has also placed reliance upon Dattatraya Laxman Kamble vs Abdul Rasul Moulali Kotkunde & Anr 1999 AIR SCW 2259, passed by Hon'ble Supreme Court of India wherein it has been held that:
"When a landlord says that he needs the building for his own occupation there is no doubt he has to prove it. But there is no warrant for presuming that his need is not bona fide. The statute enjoins that the court should be satisfied of his requirement. So the court would look into the broad aspects and if the court feels any doubt about the bona fides of the requirement it is for the landlord to clear such doubts. Even in a case where the tenant does not contest or dispute the claim of the landlord the court has to look into the claim independently albeit landlords burden gets lessened by such non-dispute. In appropriate RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 73/81 cases it is open to the court to presume that the landlords requirement is bona fide and put the contesting tenant to the burden to show how the requirement is not bona fide."
10.44 PW1 to PW3 have all submitted in their evidence by way of affidavit that the family of Sh. Anuj Nath, Karta of petitioner no. 1 is living in tenanted premises in Sainik farms and PW2 along with his family and mother is residing in the aforesaid Ghitorni property. It is further stated that initially all the members of petitioner no. 1 were residing in the said Ghitorni property which comprises of three bedrooms, one drawing room, basement, three bathrooms and one kitchen. Thereafter in 2004, PW1 and his family shifted to tenanted premises in Sainik farms due to insufficiency of space in Ghitorni property. PW1/J (colly) are the MTNL bills of property bearing no. 53, first floor, Sainik Farms, New Delhi which are in the name of Sh. Anuj Nath, Karta of petitioner no. 1. After perusing the entire cross-examinations of PW1 to PW3, it is observed that there is absolutely nothing in them to doubt the veracity of averments put forth by the said witnesses that PW1 along with his family is staying in the tenanted premises in Sainik Farms. The said averment of the aforesaid witnesses has stood the test of cross-examination.
10.45 Once it is held that PW1 along with his family is residing in tenanted premises, the next thing to be determined RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 74/81 is whether the need of the petitioners is bona fide or not. It is admitted that Ghitorni property currently being used for residential purpose by PW2 is approximately 1000-1100 sq. yards. Barring the portion built on the first floor of the said property, the parties are in agreement that rest of it's portion comprises of three bedrooms, one drawing room, basement, three bathrooms and one kitchen. Qua the first floor of the said property, PW1 and PW2, stated in their cross-examination, that the same consists of only one servant room and there are no other bedrooms on the first floor. Nothing more is there in the aforesaid cross-examinations to doubt the veracity of the averment put forth by PW1 and PW2 in this regard. The said property is being used by PW2 for residence of his wife, daughter and mother.
10.46 Accordingly, PW1 alongwith his family had to shift to a tenanted premises in Sainik Farms in 2004. In light of the aforesaid, it is held that the petitioners have duly proved that the premises in question are required for occupation of family of Karta of petitioner no. 1. The need of the Karta of petitioner no. 1 is genuine and bona fide as he can legitimately expect to live in his own property instead of continuing to reside in a tenanted premises. In this regard, it is also settled law that the landlord also enjoys a presumption in his favour unless contrary is proved or sufficient doubt is created. It has been held RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 75/81 by the Hon'ble High Court of Delhi in M/S Metro Bearings vs Mrs. Faizunnisa & Ors., RC. REV. 513/2018 that:
"It is thus clear from the above said position that whenever a landlord seeks ejectment of the tenant for bona fide requirement, the requirement shall be presumed to be genuine and bonafide. Though, the burden lies upon the tenant to prove that the requirement is not genuine, it is also, however, settled in law that it should be more than just a mere assertion on the part of the tenant to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine."
10.47 As has been held above, in the instant matter, the respondents have failed to prove that the need of the landlord in not bona fide. Accordingly, the said contention put forth on behalf of respondents is hereby rejected.
10.48 I shall now deal with the last question to be dealt with, that is, whether there is no other alternate suitable accommodation available with the landlord. Ld. Counsel for the petitioners has submitted that PW1 to PW3 have categorically stated in their evidence by way of affidavit that they do not own any other alternate suitable accommodation. He further submits that petitioners claim to be the owner of the property bearing no. 420, Gittorni, MG Road, Delhi however the said claim of the petitioners has been refuted by the respondents. It is further submitted that respondents have initiated parallel proceedings for RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 76/81 vacation of the aforesaid premises wherein they have claimed themselves to be the owners thereof and the said matter is still pending adjudication.
10.49 Per Contra, Ld. Counsel for the respondents has submitted that in their cross-examinations, PW1 to PW3 have claimed ownership of the Ghitorni property which has not been disclosed in the petition. It is further submitted that the aforesaid omission of not mentioning the aforesaid property in the petition is deliberate on the part of the petitioners and they are liable of suppressing and concealing significant facts. Further, it is submitted that the aforesaid property is currently in occupation of the petitioners and is large enough to accommodate all the members of the petitioner no. 1.
10.50 It is admitted position that respondent no. 1 is the recorded owner of the aforesaid Ghitorni property and it is currently in occupation of petitioner no. 1. Perusal of cross- examinations of PW1 to PW3 also reflects that petitioner no. 1 claims to be the current owner of the said property. The said claim is challenged by the respondents and the suit for possession of the aforesaid property filed by the respondents, is currently pending adjudication. Since the question of ownership of the said property is still pending adjudication in another proceeding, it cannot be decided vide instant proceedings as to whether RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 77/81 petitioner no. 1 is the owner thereof or not. Necessary corollary is that for the purposes of the instant petition, petitioner no. 1 cannot be treated as owner thereof.
10.51 Even otherwise, as has been held above, the petitioners have duly proved that the said property is not large enough to accommodate all the members of the petitioner no. 1. It is for this reason that PW1 alongwith his family shifted to a tenanted premises in 2004. Further, PW1 to PW3 have all submitted that they do not own any other property other than the premises in question and the aforesaid Ghitorni property. Nothing whatsoever has come in their cross-examination to even suggest the possibility of them owning any other property. Accordingly, I am of the opinion that petitioners have duly proved that they do not own any other alternate suitable accommodation.
10.52 Further, in my opinion, the contention of the respondents that the instant suit is liable to be dismissed as the petitioners failed to disclose in their petition that they claim to be the owners of the aforesaid Ghitorni property is also liable to be rejected. As has been discussed above, the lis qua the ownership of the said property has not attained finality and the appeal preferred by the respondents is still pending adjudication. The non-mention of the said property in the instant petition is not fatal to the instant proceedings as the said factum of pending RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 78/81 litigation has been in the knowledge of both the parties and it has not caused prejudice to either party. In this regard, I also seek to place reliance upon judgment passed by Hon'ble High Court of Delhi in Rajni Bahl(Since Deceased) Thr Lrs vs Arun Kumar Nayyar, RC. REV. 517/2018 wherein it has been held that:
"The argument of the petitioner that the respondent has intentionally not disclosed the alternative accommodations is also without merit. The learned ARC has correctly relied upon precedents to hold that non-disclosure of alternate accommodation is not fatal to the eviction proceedings if the case of neither of the parties was prejudiced. The relevant portion of the impugned judgment reads as under:
"71. Of course, it is correct that the petitioner did nor disclose the availability of above three premises in his eviction petition. However the question is whether any prejudice was caused to respondent from the said alleged concealment. The answer is no, for the reason that the petitioner has managed to prove that none of the aforesaid accommodation can be termed to be suitable alternate accommodation. Moreover the respondent has had an opportunity to fully argue and lead evidence to prove the suitability of those accommodations. Reliance can be placed on judgment of Hon'ble Supreme Court in M.L. Prabhakar Vs. Rajiv Singhal (2001) 2 SCC 355, wherein qua the plea of concealment / suppression, it was held that the fact that the landlord has another accommodation would not RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 79/81 be fatal to the eviction proceedings if both the parties understood the case and placed materials before the Court and case of neither party was prejudiced. Accordingly, it was held that though the landlord in that case had not mentioned about the other premises but the material in respect of the other two premises had come before the Rent Controller as well as before the High Court and no prejudice had been caused and the parties had squarely dealt with the question."
10.53 Therefore, it is held that the omission on the part of petitioners to disclose the aforesaid Ghitorni property, whether deliberate or otherwise, is of no consequence in the instant matter.
10.54 In light of the aforesaid discussion, it is hereby held that the suit premises are required bonafide by the petitioner no.1 for the residence of it's Karta Sh. Anuj Nath and his family. Accordingly, petitioner no. 1 is entitled to relief under Section 14(1)(e) Delhi Rent Control Act, 1958. Petitioner no. 1 is held entitled for recovery of the tenanted premises, i.e., property bearing no. 20/48, First Floor, Malcha Marg, Chanakyapuri, New Delhi 110021, as shown in 'red' colour in the site plan annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 80/81 tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act. The parties to bear their own costs.
11. File be consigned to the Record Room after due compliance. Digitally signed by SIDDHANT SIDDHANT SIHAG Announced in the open SIHAG Date:
2024.06.07 court today i.e. 07.06.2024 16:59:19 +0530 Siddhant Sihag ACJ-CCJ-ARC/NDD, PHC New Delhi: 07.06.2024 RC ARC No. 5507/16 Surinder Nath (HUF) & Anr. versus K.S. Bakshi & Ors. Page 81/81